Obama’s Bipolar Immigration Stance: Comprehensive Reform in the Future, Expanded Enforcement Now

While the Obama administration did nominate the first Latino Supreme Court Justice [who was just confirmed today], they have been repulsing a lot of their immigrant and Latino advocates for helped them win the election last November.  According to an article by Julia Preston in the New York Times, the administration’s decision to not only keep but also expand controversial Bush-era immigration enforcement measures has propelled several immigrant groups to begin a national movement to make them make good on campaign promises.

The Obama administration has initiated employee audits at more than 600 employers nationwide, expanded the E-Verify program, increased criminal prosecutions for immigrant violations [up over 30% since this time last year, according to a study by Transaction Records Access Clearinghouse], created a program that runs immigrant checks on everyone who enters a local jail in some cities, and extended the 287(g) program made infamous by Arizona Sheriff Joe Arpaio.  Secretary Janet Napolitano, formerly governor of Arizona, stated that she wouldn’t call of immigration raids entirely, though they have subsided since Postville, Iowa, little more than a year ago.  Napolitano said, “We will continue to enforce the law and to look for effective ways to do it.”

The problem lies in the fact that some of these programs are not “effective ways to do it.”  Immigrant and business advocates have sued to stop E-Verify because of its woeful inaccuracies.  While the program touts a .3% error rate for the 137,000 employers now enrolled. With 6.4 million queries, however, a .3% error rate still means that over 19,000 legal immigrants or citizens have received false denials so far in 2009.

Additionally, the seriously flawed 287(g) program that deputizes local police agencies to carry out federal legislation encourages civil rights violations, racial screening, and vigilante justice.  Sheriff Joe Arpaio of Maricopa County, the self-titled “toughest sheriff in America,” is currently under investigation for his long laundry list of civil rights abuses, from parading prisoners through the streets in shackles, making prisoners wear pink underwear, feeding them green bologna, and racially profiling Latinos for “random” traffic stops.

While President Obama stated that immigration reform would be passed within the year, Napolitano’s actions with the Department of Homeland Security have been anything but.  Perhaps it is political jiujutsu, designed to convince certain political affiliations that this administration will be hard on those who break the law and will not allow another 12 million undocumented immigrants to enter the country again.  However, by not only maintaining but actually revamping failed immigration enforcement mechanisms, the administration is sending a very mixed message about what that “immigration reform” will resemble.

Postville: The Difference a Year Makes

Yesterday, immigrant rights advocates marched down the tiny streets of Postville, IA. They marched to remind the nation that workplace raids cause ongoing devastation, that immigrants deserve basic human rights, and that Obama must live up to his promise to tackle immigration reform in the next year. [Martin, Liz. “Postville story, a year later, told in photos”]

Local businessman Gabay Menahem joined the march and commented on the economic difference a year makes.  “A year ago it was impossible to buy a house in Postville. Now there are 228 houses for sale out of 700 total.”  More than 30% of the Jewish community left after the raid, and much of the Latino community was either deported after entering guilty pleas or fled in fear.  [Love, Orlan] Some still remain, wearing transponders on their ankles more than a year later.  Children still remain [local school attendance has only dropped about 3%], but they are in increasing need of mental health services, and many of them are missing at least one parent.

Father Ouderkirk and St. Bridget’s Church continue to minister to the Latino community of Postville.  They currently care for 30 affected families, aiding them with housing and food and counseling as they seek to be reunited with their family members or as they wait for their day in court.

Most of the 389 workers arrested pled guilty last May.  They were housed in a cattle-barn, expedited through a trailer-home courthouse ten at a time, and threatened with years in prison unless they pled guilty on the spot.  Many of them were from Guatemala, and few of them spoke English.  The majority of them had no idea what a Social Security number was, or why the leading prosecutor Stephanie Rose thought that they had used fake ones.  Many of them had received fake numbers from their employer, Agriprocessor’s Inc., the largest kosher meatpacking plant in the nation.

Last week, the Supreme Court issued its ruling on Flores-Figueroa, ruling that to be convicted of aggravated identity theft, the person must know they are using another person’s identification.  While this ruling does little for the 389 workers, most of whom pled guilty and have since been deported, but it is resulting in dropped charges against some of Agriprocessor’s administration.  Last Tuesday, federal prosecutors dropped aggravated identity theft charges [a mandatory 2 years imprisonment] against human resources manager Laura Althouse, who was allowed to rescind a guilty plea she entered last year. [Preston, Julia. “Dismissal of Guilty Pleas is Sought for Immigrants”]

As the Supreme Court’s decision affects the sentencing of this dubious employer’s administrative staff, many are calling upon Attorney General Eric Holder Jr. to order a case-by-case investigation into the almost 300 guilty pleas entered last May in Postville. “The federal prosecutors used the law as a hammer to coerce the workers,” said David Leopold, vice president of American Immigration Lawyers Association.  Others went farther, including Representative Zoe Lofgren (D-California), chairwoman of the House immigration subcommittee.  She is calling on the Justice Department to start over, since these cases didn’t comport with the law. [Preston, Julia. “Dismissal of Guilty Pleas is Sought for Immigrants”]

Today marks the day after Postville’s raid last year.  Postville no longer represents the largest ICE raid [Laurel, MS, now holds that dubious title].  This tiny town in northern Iowa has largely been forgotten by politicians and lawmakers, if not the general public.  As life goes on and our courts begin to follow the new Flores-Figueroa ruling, it is vital that we make sure it is evenly applied.  There is an unpleasant aroma of injustice when the immigrants who worked in subhuman conditions were imprisoned five months and deported, while the employers were never made to stand accountable for their numerous employment violations [child labor laws, safety protocols, and pay] and look to walk on some of the harsher sanctions of identity theft and employing undocumented workers.

April Showers bring May Flores Decision from the Supreme Court

Having spent much of this past semester writing and researching my Legal Writing brief at the University of Minnesota Law School, I became intimately acquainted with the aggravated identity theft statute 18 USC 1028A.  Today, almost a year since it was used to deport nearly 400 Latino immigrants after the ICE raid in Postville, the Supreme Court issued its decision on Flores-Figueroa vs. United States. Justice Breyer authored the opinion which explained that for aggravated identity theft, the defendant must have known they were misappropriating an actual person’s identity.  All too often in the past, 1028A was used as a catch-all statute to compound the sentences of unwitting immigrants who were given papers and had no knowledge that their Social Security numbers belonged to a real person.[Stout, David. “Supreme Court Rules Against Government in Identity-Theft Case”]

In Postville, for example, local sources state that the management of Agriprocessors actively provided such false documents for the immigrant workers from Central America.  Within a week of that raid in May of 2008, chained groups of immigrants were brought before a judge holding court in a trailer. They were told that they had stolen people’s Social Security numbers [a word few of them knew], and that they should accept the government’s offer of 6 months and then deportation.  Most took the deal, though they understood little English and even less about the complex American immigration system.[Stout, David. “Supreme Court Rules Against Government in Identity-Theft Case”]

Ignacio Flores-Figueroa was a Mexican immigrant working in an Illinois steel facility.  Unbeknownst to him, the papers he had procured bore the name and number of an actual person. When he was caught, Ignacio pled guilty to the immigration charges but refused to accept the aggravating sentence of identity theft.  While the 8th Circuit upheld the conviction, the Supreme Court’s decision today means that Ignacio will serve less time before he is deported.  However, this case, argued by Stanford University Law Professor Kevin Russell, will hopefully change, if not eliminate, ICE employer raids in the future. [Stout, David. “Supreme Court Rules Against Government in Identity-Theft Case”]  While real identity thieves will still be subject to the compounding sentencing of 1028A, vulnerable immigrants will no longer be forced to spend extra time in prison before returning to their families.  As Postville prepares for its first anniversary march of last year’s ICE raid, one can only think Flores-Figueroa came a year too late.

Medicine and Migration in Minnesota

In this snowy city where once Norwegians and Swedes had their own hospitals, the 446-bed Hennepin County Medical Center (HCMC) currently spends $3 million on interpreters fluent in 50 languages to translate over 130,000 times a year. Minneapolis is home to the largest Somali community in the United States, some 35-40,000. The Twin Cities also have large Hmong and Latino communities, in addition to Liberian, Sudanese, Russian, and most recently Bhutanese immigrants. HCMC has adjusted its practice to better meet the needs of the diverse immigrant population it serves, a community that comprises 20% of its patient base. (Grady, Denise. “Foreign Ways and War Scars Test Hospital”)

Catering to its patient mix, HCMC’s obstetrics unit is now predominantly female, since Muslim women cannot have their children delivered by male doctors. Imams are often consulted prior to medical procedures, such as drawing blood during the month of Ramadan. No questions are asked about immigration status, and indigent patients are offered a sliding-scale fee, though not all can afford even this. Many of these immigrants are refugees from war-torn countries, and their medical care often includes the surgical removal of shrapnel and more difficult treatment of buried pain. Some 47% of women and 25% of men in the Somali community experienced torture (a number extremely high even for refugees), and their care necessarily includes counseling and holistic treatment. (Grady, Denise. “Foreign Ways and War Scars Test Hospital”)

HCMC’s dedication to its immigrant patient population is surely to be lauded. In an economic climate that has hospitals seriously worried about budgets, this Minneapolis hospital is noteworthy in its continued efforts to better serve its community. It is refreshing to see such a positive community response to the new challenges immigration brings; the impact of these efforts at integration and outreach can be seen in the faces of fellow passengers every time one steps on a bus or the Light Rail in this Silver City.

Dia de los Muertos, Dia de los Vivos

On the Dia de los Muertos, just days before the Day of the Living (November 4^th), students from the University of Minnesota, Augsburg College, and Minneapolis Community & Technology College marched to remember the 1,954 border-crossing deaths the Border Patrol estimates occurred between 1998-2004. Those numbers continue to rise every year, with increased militarization and border barriers redirecting immigrants to more dangerous regions. (http://www.mndaily.com/2008/11/01/d%C3%AD-de-los-muertos-procession-honors-immigrant-deaths)

500 students marched in South Minneapolis as part of this event by Minnesota Immigrant Rights Action Coalition. Beginning at the Holy Rosary/Santo Rosario Catholic Church and finishing at El Milagro: The Miracle Lutheran Church, these protestors tried to publicize the fact that annual border crossing deaths have doubled in the ten years since 2005. As the participants read these names aloud, the air grew chill with the realization that our country’s policies are directly causing deaths.

Our new President-elect is inheriting an office faced with a teeming host of problems. American policies are causing deaths, both American and global, in far-reaching places like Iraq and Afghanistan and Somalia, but our legislation is also leading to deaths as close as Arizona, California, and Texas. Immigrants lured by employers and kept in a dependent work-relationship die every year, failing to get the health benefits and insurance they need. Hospitals like Saint Joseph’s in Phoenix repatriate about eight uninsured patients a month. While Vice-President Sister Margaret McBride said this is just a part of them trying to “be good stewards of the resources we have,” hospital El Centro Regional Medical Center in California refuses to forcefully deport immigrant patients. CEO David Green of that hospital said, “We don’t export patients. I can understand the frustrations of other hospitals, but the flip side is the human being element.” (http://www.nytimes.com/2008/11/09/us/09deport.html?_r=1&scp=1&sq=immigrant%20hospital&st=cse&oref=slogin)

Although healthcare is distant fourth on the upcoming President’s agenda and immigration a distant fifth or sixth, our lack of universal healthcare and lack of immigration reform creates a “perfect storm” which establishes bizarre incentives for hospitals to rid themselves of uninsured patients. Illegal immigrants are only partially covered by emergency Medicaid or, for the last few years at least, through the Medicare Modernization Act of 2003 (expired in October). Infants, even legal citizens like Elliott Bustamente who was born at University Medical Center in Tucson, are often ordered to be transferred to a Mexican hospital regardless of his heart defect or Down Syndrome. Dr. Stephen Larson, migrant health expert at the Hospital of the University of Pennsylvania, states that, “You’re given an out by there not being formal regulations. The question is whether or not litigation, or prosecution, catches up and hospitals start to be held liable.” Dr. Robert Margolin of the California Medical Association, confessed that, ““While we empathize with hospitals that must provide uncompensated care to undocumented immigrants, we overwhelmingly oppose the practice of repatriating patients without their consent.” (http://www.nytimes.com/2008/11/09/us/09deport.html?_r=1&scp=1&sq=immigrant%20hospital&st=cse&oref=slogin ). For hospitals that refuse to repatriate patients without their consent, though, this incurs prohibitive costs which are only partially covered by the State.

Hospitals are put between a rock and a hard place, when 12 million extralegal immigrants are not allowed to acquire employer-based or private insurance and our current healthcare system doesn’t pick up the costs. Being married to a hospital administrator and being the son of a healthcare executive, I uniquely understand the plight of hospitals as it gets harder and harder for them to survive financially. However, the forced repatriation of people based on racial profiling and lack of insurance certainly does not solve immigration issues nor does it adequately address the needs of hospitals. As President-elect Obama prepares to take the Oval Office, it is our duty as citizens to keep these issues in the forefront of his mind.